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Clare v. Peach () [1995] TCACA 1 (06 April 1995);

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The Criminal Appeal Reports 1995

General Editor

Percy Metcalfe, M.A. (Cantab.), of the Inner Temple, Barrister

Editors

Daniel Janner, M.A. (Cantab.), of the Middle and Inner Temple, Barrister

Nicholas Hilliard, M.A. (Oxon), of the Middle Temple, Barrister.

Volume 2

London • Sweet & Maxwell

1995

RICHARD CLARE

NICHOLAS WILLIAM PEACH

COURT OF APPEAL (The Lord Chief Justice (Lord Taylor), Mr Justice Owen and (Sir Lawrence Verney) the recorder of London): March 13, April 6, 1995

EVIDENCE

Admissibility

Video recording of incident of violent disorder—Video recording shown to jury—Purported identification of defendants from video by police officer— Whether officer had "special knowledge"—Whether officer's evidence admissible.

The appellants were football supporters who were seen on video with others as they arrived at Bolton football ground. After the match the defendants went to the town centre where there were two public houses frequented by football supporters. A brief fracas, recorded by video cameras in the area, flared up between rival supporters. The prosecution alleged that the appellants were involved in the incident which amounted to violent disorder. At the trial the prosecution obtained leave to adduce the evidence of a police officer who had studied the video films closely and analytically. The films from the football ground were of good quality but those from the town centre required careful study, involving repeated examination in slow motion, frame by frame. The officer identified the appellants on the video film as those committing acts of violence. The appellants were convicted of violent disorder and appealed on the ground, inter alia, that the officer's evidence was inadmissible since he could not be regarded as an expert witness and was therefore in no better position than the jury to decide whether those committing violent acts on the film were the appellants.

Held, dismissing the appeal, that the police officer had acquired knowledge by lengthy and studious application to material which was itself admissible evidence; that to afford the jury the time and facilities to conduct similar research would be impracticable; and that, accordingly, it was legitimate to allow the officer to assist the jury as he did since he was open to cross-examination and the jury were free to accept or reject his assertions, after proper direction and warnings.

Per curiam: As technology developed, evidential practice would need to be evolved to accommodate it. Whilst the courts had to be vigilant to ensure that no unfairness resulted, they should not block steps which enabled the jury to gain full assistance from technology.

[For opinion evidence, see Archbold (1995), paras. 10-77, 77a.]

Appeal against conviction.

On July 2,1993, in the Crown Court at Bolton (Judge Nigel Howarth) the appellants were convicted of violent disorder and on July 30 Clare was sentenced to 80 hours conununity service and ordered to pay £600 towards the prosecution costs. Peach was sentenced to one months' imprisonment. The facts appear in the judgment. The appeal was argued on March 13, 1995.

R. J. B. Green (assigned by the Registrar of Criminal Appeals) for the appellants.

N. H. Simmonds for the Crown.

Cur. adv. vult.

April 6. LORD TAYLOR C.J. delivered the following judgment of the Court: On July 2, 1993, at Bolton Crown Court these appellants were convicted of violent disorder. On July 30, Clare was sentenced to 80 hours Community Service and ordered to pay £600 towards the prosecution costs. Peach was sentenced to one months' imprisonment.

A co-accused, Lee Blades, pleaded guilty to the same offence and was sentenced to three months'-imprisonment. Two other co-accused, Garbett and Payne, were each acquitted.

The appellants renewed their applications for leave to appeal against conviction after refusal by the single judge. On June 20, 1994 the full Court granted them leave.

The case arose from the aftermath of a football match. On September 7, 1991, Bolton Wanderers and West Bromwich Albion met in Bolton. The applicants were West Bromwich supporters. They were seen and filmed in common with others as they arrived late at the ground. After the match, together with other West Bromwich supporters, they set off towards the railway station but in fact took a wrong turning. Whether this was deliberate or accidental was not established conclusively. They proceeded on foot down a road near the town centre where there were two public houses frequented by Bolton supporters. There were three video cameras permanently fixed on buildings so that they could record the activities of those at ground level. What they filmed could be viewed at a communication centre and five video recorders registered what occurred.

The prosecution case was that a brief fracas flared up between supporters of the two clubs amounting to violent disorder and these two appellants took part in it. The incident was brief and was recorded by the video cameras. It began when a missile was thrown towards the West Bromwich supporters. The Crown alleged that the appellant, Peach, raised both arms two or three times signalling other West Bromwich fans to advance towards Bolton fans some 20 yards or so ahead of them. Shortly afterwards, the Crown contended that Peach kicked out at a Bolton fan and then picked up a missile and hurled it. It allegedly struck one of the Bolton fans on the back of the leg causing him to limp. The appellant Clare ran towards the Bolton fans and kicked out at one of them as he retreated. When the Bolton fans turned round and squared up, Clare allegedly waved the West Bromwich fans forward sending their Bolton opponents once again into retreat. Blades, who pleaded guilty, punched an innocent bystander who was with his girlfriend. When the incident was over, Peach again raised his hands in the air.

Essentially the evidence upon which the Crown relied was the video recording which was available to be played to the jury. However, because the incident was brief and because there were many supporters and other members of the public milling about and creating a confused scene, what was actually being done and who was doing it could only be discerned by close study.

Police Constable Fitzpatrick had studied the film closely and analytically. He it was who, together with a colleague, had filmed supporters arriving at the football ground before the match, filmed them whilst they were in the stadium and filmed them as they left. Those colour films were of good quality. The video recordings made in the street were filmed in black and white. P.C. Fitzpatrick had viewed the recording of the incident about 40 times. He had been able to examine it in slow motion, frame by frame, rewinding and playing as frequently as he needed. By studying the film in this way, he was able to follow the movements of individuals and see what actions they took. By comparing the individuals performing violent acts with the colour pictures taken before and at the match, he claimed to be able to identify not only the violent acts in the street but who was committing them.

Accordingly, the Crown sought to adduce the evidence of P.C. Fitzpatrick in order to elucidate for the benefit of the jury what could be seen on the video recording.

The defence objected to P.C. Fitzpatrick giving such evidence. The trial judge ruled in favour of the prosecution and P.C. Fitzpatrick was allowed, as the video recording was played to the jury, to indicate where acts of violence were taking place. He also gave evidence that, having studied the colour film he himself took before and at the match as well as still colour photographs taken at that time by his colleague, he was able to identify those committing the violent acts as persons, including the appellants, who were clearly shown on the colour film and still photographs. There was no dispute that the appellants were shown on the colour film and photographs. Indeed, Peach identified himself on one of the photographs during an interview with the police.

Neither of the appellants gave evidence. The case for each was that the identifications of them as participants in the violent incident were mistaken. They relied upon the brevity of the incident, the number of young men in similar dress and the quality of the film. As to the latter factor, there is no doubt that the film was less clear than the video recording made earlier in colour.

The first ground of appeal advanced by Mr Green, who appeared before us on behalf of both appellants, was that the trial judge should not have allowed the video of the incident to be played to the jury at all. It was submitted that the quality of the film and the brevity of the incident were such that the jury could not properly be asked to form safe conclusions adverse to the appellants by reference only to the film. There was no eyewitness. We have seen the video recording and we agree with the trial judge, the single judge and indeed the constitution of this Court which granted leave that there is no merit in this first submission. Despite the criticisms made of it, the video recording was in our view sufficiently clear to make it fit for the jury's consideration.

The main ground of appeal, however, and that which persuaded the full Court to grant leave relates to P.C. Fitzpatrick's evidence. Mr Green argued that if the jury were to be shown the film, it should have been shown to C them without assistance from P.C. Fitzpatrick as to the identity of those involved. P.C. Fitzpatrick did not know the appellants before the day in question. He could not be regarded as an expert witness. He was in no better position than the jury to decide whether those committing violent acts on the film were the appellants.

Mr Green conceded, that since the film showed many people milling about in the street and the acts relied upon were very brief, it was legitimate for the officer to point out to the jury whereabouts on the frame they should look for specific acts relied upon. Again, Mr Green conceded that if a witness knows a person it would be permissible for him to identify that person from a video. In support of that concession he referred to the cases of Grimer [1982] Crim.L.R, 674; Fowden and White [1982] Crim.L.R. 588 and Kajala [1982] Crim.L.R. 433.

Primarily, therefore, Mr Green's attack was upon the trial judge's ruling E that P.C. Fitzpatrick who did not know the appellants could identify them on the film. As to the general admissibility of evidence aimed at interpreting what the jury can see on a film or purporting to identify actors on the film, we are told there are no English authorities. We were however referred to Commonwealth authorities as was the trial judge.

In the Canadian case Leaney and Rawlinson (1988) 38 C.C.C. (3d) 263, the p two appellants were convicted of robbery and other offences. One was short and the other, Leaney, was tall and thin. A video camera had filmed the two robbers as they broke in. Evidence was admitted from a number of police officers who had viewed the video together and who purported therefrom to identify Leaney. Although one of the officers had known Leaney before, the others had not seen him prior to his arrest. In the Alberta Court of Appeal, Harradence, J., held that the evidence of the officers who G did not previously know Leaney should not have been admitted. The majority, however, dismissed Leaney's appeal, holding that even if that evidence should not have been admitted, no miscarriage of justice had occurred. Harradence, J. at p. 276 said:

"The identification offered by the police officers was non-expert opinion evidence. Such evidence is often relevant and admissible to prove identification where the trier of fact is not in a position to make the identification unaided.... In those situations the opinion evidence of non-experts is admitted to assist the trier of fact in determining identification. The witness must be shown to have special knowledge that the Court does not possess."

In Steele and Forbes v. H.M. Advocate 1992 J.C. 1, the appellants were B convicted of housebreaking. Their appeals were allowed on a ground irrelevant to the present case. However, another ground related to the Sheriff's direction to the jury about video recordings obtained in a surveillance operation. He had said that the jury could not rely upon the video alone but only upon the oral evidence of witnesses "as to what they believe they saw on the tape". For the appellants, it was contended that the video was the best evidence and the jury should be confined to that. Quoting from the judgment of Lord Justice General Clyde in Hopes and Lavery v. H.M. Advocate 1960 S.C.(J.) 104, 111, Lord Hope said at p. 5:

"It is undesirable for a trial to be prolonged by a long series of replayings of the tape or of passages from it either at the request of the parties or of the jury and it would equally be wrong for the jury to retain and replay the tape outwith the presence of the prosecutor or the accused when they are considering their verdict. So it is likely to be of advantage for the witnesses to be asked to give their own opinions as to what is being shown on the tape in order that the jury's minds can be directed to the relevant points while the tape is being played.... in the circumstances of this case, where so much about what was seen on the tapes was disputed and the facts could not be left to speculation by the jury, it may well have been appropriate, and we are not persuaded E that it was a misdirection for the Sheriff to say what he did."

In Howe (1982) 1 N.Z.L.R. 618, the Court of Appeal of New Zealand had to consider a case arising from very similar circumstances to those of the instant case. During the Springbok Rugby Tour there was a demonstration which ended in violence. Various video tapes and photographs were taken. When the films were shown to the jury, a detective identified individual accused by giving a commentary from the witness box. The detective had not personally known any of the appellants save one before the day of the match and he was not present when any of the incidents were recorded on film. However, he had viewed the edited version of the tapes many times and (as in the present case) he was allowed both to describe what was being done at a particular time whilst the video was played and to identify who was doing it. At p. 627, the judgment of the Court reads as follows:

"Here, the evidence was needed to make the tapes and film and even the still photographs more readily understandable. The action was complicated and confused. Important details could easily be missed without prolonged viewing or guidance from someone closely familiar with the material. Having viewed the pictures ourselves, we are satisfied that the commentary by Detective Parsons was legitimately required as an aid to the jury. Economy, convenience and despatch would commend the admission of such a commentary and we see no fundamental principle in the law of evidence which would be infringed. The original tapes, films and photographs had been properly proved and the identification made from them by Detective Parsons was no more secondary evidence than was any oral identification made from a photograph.

It was argued however, that Detective Parsons was not an expert. Whether a person is an expert in a particular field is not always easy to define. A witness need not embark on a course of scientific study to qualify as an expert; he may acquire his knowledge merely from experience; it is not necessary for him to acquire it professionally: Silverlock [1894] 2 Q.B. 766, 771; Menzies [1982] 1 N.Z.L.R. 40. There seems no reason in principle why a person who has seen tapes and the like as many times as Detective Parsons saw this material and has made a study of them and compared them with other still photographs with' the purpose of reliably identifying individuals, should not be regarded as sufficiently expert ad hoc to give identification evidence."

The trial judge adopted and followed that passage. In our judgment he was right to do so. The phrase "expert ad hoc" seeks to put witnesses like Detective Parsons and P.C. Fitzpatrick into the traditional category of those qualified to give opinion evidence. Whether or not the tag is appropriate, we are clearly of the view that P.C. Fitzpatrick had "special knowledge that the Court did not possess", to quote the Canadian judgment cited above. P.C. Fitzpatrick had acquired the knowledge by lengthy and studious application to material which was itself admissible evidence. To afford the jury the time and facilities to conduct the same research would be utterly impracticable. Accordingly, it was in our judgment legitimate to allow the officer to assist the jury by pointing to what he asserted was happening in the crowded scenes on the film. He was open to cross-examination, and the jury, after proper direction and warnings, were free either to accept or reject his assertions.

As to the identification by P.C. Fitzpatrick of individual actors on the film, which was Mr Green's principal ground of complaint, we agree with the New Zealand Court of Appeal that such identifications were "no more secondary evidence than any oral identification made from a photograph". True, P.C. Fitzpatrick did not know either of the appellants before the day of the match. However, he and his colleague had taken high quality colour film and still photographs of West Bromwich fans including the appellants arriving at the Stadium, sitting in it and leaving it. There was no issue that the appellants were clearly shown on the colour film and photographs. By repeated study of those likenesses, P.C. Fitzpatrick was well qualified to say: "I know what A looks like, indeed what he looked like and wore on the day, and I can identify him on the black and white video film".

If admitting evidence of this kind seems unfamiliar and an extension of established evidential practice, the answer must be that as technology develops, evidential practice will need to be evolved to accommodate it. Whilst the Courts must be vigilant to ensure that no unfairness results, they should not block steps which enable the jury to gain full assistance from the technology. Accordingly, the principal ground of appeal in this case fails.

Mr Green further argued that the trial judge should have acceded to a submission of no case to answer since the video evidence, even after P.C. Fitzpatrick's purported elucidation, was tenuous. That was a matter for the trial judge's assessment. Having seen the video, we cannot agree that the evidence was unfit to be left to the jury.

Finally, Mr Green criticised the learned judge's summing up. He complained that the judge's directions did not sufficiently accord with the guidelines laid down in the leading case of Turnbull (1976) 63 Cr.App.R. 132, [1977] Q.B. 224. In our judgment, this criticism is totally without foundation. The judge gave the jury the clearest directions along Turnbull lines. He did so, not only when dealing generally with the law early in his summing up. He repeated the Turnbull directions shortly before the jury retired. We agree with the single judge that the summing up was notable for its clarity and fairness.

There being no other grounds, these appeals are dismissed.

Appeals dismissed.

Solicitors: Crown Prosecution Service, Manchester.